Psychosocial Risks as a Consequence of a Workplace Investigation
NSW Industrial Relations Commission confirms that the process of conducting a workplace investigation can create a psychosocial risk. The Commission upheld two improvement notices issued against the Department of Education after finding that its workplace investigation exposed a long serving employee to psychosocial risks.
The employee was a Business Manager at a NSW Department of Education (Department) school and had been employed for approximately 14 years. On 4 April 2023, she received correspondence from the Department’s Professional and Ethical Standards Directorate advising that she was the subject of a misconduct investigation.
She was directed to immediately leave her workplace and report to a different workplace to perform alternate duties. At that stage, no particulars of the alleged misconduct were provided. Shortly after receiving the correspondence, the Business Manager attempted to commit suicide.
A formal letter of allegations was not issued until 5 July 2023, some three months after the Business Manager had first been advised of the investigation and redeployed. The investigation continued, with limited information provided to the Business Manager about its progress.
In November 2023, the Business Manager made a complaint to SafeWork NSW, raising concerns about the length of the investigation, the lack of communication and the nature of the alternate duties to which she had been assigned.
SafeWork NSW issued two improvement notices on 6 February 2024. The improvement notices required that the department complete timely investigations with an estimated timeline at the commencement of the investigation and has a process and prescribed timeframes and provide formal, regular and documented updates on the progress of an investigation and where workers are placed in alternative duties (as was this worker) that the alternative duties are commensurate with their position, duties and functions.
On 23 March 2024, almost 12 months after the investigation had commenced and more than six weeks after SafeWork NSW had issued the improvement notices, the Department advised the Business Manager that all allegations of misconduct had been substantiated and that she would be issued with a caution and reprimand.
The Department argued that the notices should be set aside on the basis that psychosocial risk regulations are uncertain, difficult to comply with and workplace investigations were not an appropriate focus of WHS enforcement.
The Commission accepted that workplace investigations are inherently stressful but the critical issue was whether the employer had adequate controls in place to manage the foreseeable psychosocial risks arising from the investigation. The Commission said they wanted to see the following:
- Enforceable timeframes, oversight mechanisms to prevent investigations from drifting
- If removing an employee from their substantive role then replacement duties must be genuinely suitable and commensurate with their experience and seniority
- Communication obligations during investigations are clearly defined and followed
- Psychosocial risk assessment expressly identify and consider workplace investigations and disciplinary processes
Giggle for Girls Case
Explainer: Giggle for Girls Pty Ltd v Tickle
The case concerned a social networking app called Giggle for Girls, which promoted itself as a space exclusively for women, but which excluded trans women. To join the app, users had to submit a photo of themselves. Admission to use the app was decided based on their appearance.
The applicant is a trans woman. She has lived as a woman for 9 years and is recognised by her friends, family and work colleagues as a woman. The applicant has had gender affirming surgery and legally changed her sex to female on her birth certificate under Queensland laws.
The applicant joined the Giggle app in 2021 and was initially allowed to use it. However, she was later removed after the app’s founder and CEO reviewed her photo. The applicant asked to be allowed to use the app again, but her request was denied.
The applicant made a discrimination complaint to the Australian Human Rights Commission. After the complaint could not be resolved by conciliation, she took her case to the Federal Court and won. Giggle for Girls and its CEO appealed that decision to the Full Court of the Federal Court. The applicant won again. On appeal, the Court said that the decision to exclude her from the app, and the decision not to readmit her, were both acts of direct discrimination on the ground of the applicants gender identity.
The Court awarded the applicant $20,000 in damages. This included $8,000 for aggravating conduct by Giggle’s CEO which included ‘language which portrayed the applicant as a predatory male’ and public statements showing a campaign against her.
The gender identity protections apply to people who are trans or gender diverse. The amendments mean that it is unlawful to discriminate against trans and gender diverse people in a number of areas of public life including at work, in education, or when they are trying to access goods and services.
Rising Community Expectations Around Whistleblower Protections
The KPMG Australia whistleblower scandal, which began with an internal disclosure in May 2024, has triggered a federal parliamentary inquiry, the resignation of two senior executives, and a fourth independent investigation that is now challenging the conclusions of all prior reviews. A forensic investigations expert uses the case as a masterclass in what not to do, identifying the key failures as unclear investigation scope, inadequate confidentiality protections, failure to take the complaint seriously, and accessing the whistleblower’s work device during an active standoff. A public parliamentary hearing is scheduled for 19 June 2026.
The KPMG case is not just a story about auditors and governance committees. Human resources sits squarely in the frame. An Australian Securities and Investments Commission (ASIC) survey of 134 Australian companies, published in December 2025 as Report 827, found that 20% did not provide a dedicated whistleblower hotline, 25% did not provide regular staff training on their whistleblower program, and 58% did not seek feedback from employees on their speak-up culture in the last year. The federal government has also opened consultation on whistleblower protection laws in response to rising community expectations.
‘Unacceptable Levels’ of Bullying, Discrimination and Sexual Harassment Found in NSW Police Force
An independent review of NSW Police Force workplace culture, carried out by former Victorian Equal Opportunity and Human Rights Commissioner Kristen Hilton, has found bullying, discrimination and sexual harassment at “unacceptable levels” throughout the organisation. Nearly one in three respondents reported experiencing bullying in the last five years, with a further 25% experiencing discrimination. Employees described a pattern of behaviours including being scared, belittled, humiliated and having critical information deliberately withheld. NSW Police Commissioner Mal Lanyon has accepted all recommendations.
The findings reinforce that cultural reform in large organisations requires more than policy – it requires sustained leadership accountability, structural change and genuine psychological safety. The review also found significant barriers to speaking up, with many employees lacking confidence that complaints would be taken seriously.
NSW Codes of Practice Become Mandatory Compliance Benchmarks from 1 July 2026
Effective 1 July 2026, all approved NSW Codes of Practice – including the Code of Practice: Managing Psychosocial Hazards at Work – become enforceable compliance benchmarks under section 26A of the Work Health and Safety Act 2011 (NSW). PCBUs must either comply with the relevant code or demonstrate they are managing risks to an equivalent or higher standard. Previously, simply “considering” the code was sufficient; after 1 July, departing from the Code without documented justification may constitute a WHS breach. Since 1 March 2026, unions can also initiate civil penalty proceedings for WHS breaches in NSW.
AI-Fuelled Surge in Dismissal Claims Placing Strain on Fair Work Commission
The Fair Work Commission’s total workload is on track to grow by more than 70% over three years by the end of the 2026 financial year, with total claims expected to reach 50,000-55,000 lodgements – up from around 30,000 in a typical year prior to 2023. FWC President Justice Adam Hatcher has attributed the surge largely to workers using generative AI tools to draft claims, including cases where AI has invented witness statements and fabricated facts. In one example, Justice Hatcher himself tested ChatGPT and within ten minutes had a completed application containing “a substantially invented story” about a dismissal.
In response, the Albanese Government introduced the Workplace Relations Legislation Amendment (Building Cooperative Workplaces No. 1) Bill 2026 on 3 June 2026, which would give the Commission power to bar repeat unmeritorious applicants from filing further claims without permission. The Commission is also requiring applicants to disclose whether AI has been used and to verify any case citations. For HR professionals, the message is clear – the number of claims will increase, but the legal strength of many may not.
AI in the Workplace: What HR, Safety and Employment Law Professionals Need to Know
Maddocks has published practical guidance for HR, safety and employment law professionals on the responsible use of AI in the workplace. The piece covers legal risks including discriminatory patterns in AI-assisted decision-making across recruitment, performance management and complaint handling, and what employers need to consider as AI tools become embedded in standard HR processes.
AI in Australian Public Sector Workplace Investigations
Lander & Rogers has published guidance on the use of AI tools in Australian public sector workplace investigations involving bullying and harassment. The piece raises questions around procedural fairness, bias and integrity as AI becomes more common in investigation processes, and provides practical guidance for agencies and employers considering or already using AI-assisted investigation tools.
FIFO Worker Wins Unfair Dismissal Over ‘Giga Chin’ Comment He Never Made
A FIFO mining worker has won reinstatement after the Fair Work Commission found his employer, OS MCAP Pty Ltd (a BHP Operations Services business), could not substantiate allegations that he made derogatory comments about a female colleague’s appearance over an eight-to-nine-month period in 2024. The employer alleged comments including references to a “fat ass” and a “giga chin,” but the Commission found the evidence was vague and insufficient to establish the conduct occurred. The case reinforces the standard of evidence required before taking disciplinary action, and the significant risk of dismissal based on unsubstantiated allegations.
Worker, 72, Claims Age Bias Over Casual Conversion – Court Backs Employer’s Records
The Federal Circuit and Family Court dismissed an age discrimination claim by a 72-year-old casual calibration technician who alleged he was not converted to permanent employment due to his age. The employer’s records demonstrated the casual role was temporary from the outset, engaged to cover a permanent employee on field work, and that contemporaneous documentation was maintained throughout. The court found no evidence of age-based decision-making, making this a useful case study for HR teams on the importance of documenting hiring intent and casual conversion decisions clearly from the start.
Court Dismisses Worker’s Fair Work Claim After Third Unclear Pleading
The Federal Circuit and Family Court struck out the general protections claim brought by a FIFO mining worker against Pilbara Iron Company Services for the third time in successive proceedings in 2023, 2024 and 2026. The worker alleged adverse action for raising complaints about unpaid Covid-lockdown shifts, but the court found he had never adequately named a protected attribute for his discrimination claim or clearly pleaded which workplace right drove which adverse action. The case is a clear reminder that precision in pleading is essential in general protections claims, and that precise documentation of reasons for any adverse action is critical for employers defending such claims.
Fair Work Commissioner Faces Impartiality Row Over Social Media Posts
Fair Work Commissioner Jennifer Hunt faced calls for removal from her post following controversy over social media posts in which she claimed women were being “gaslighted into being told men can transition into women,” urged voters to support parties committed to changing the Sex Discrimination Act, and described government members as “imbeciles.” The posts prompted a letter from Fair Work Vice-President Ingrid Asbury’s lawyers to the Employment Minister, arguing Hunt had brought the Commission into disrepute. The matter was ultimately resolved without the report being made public, with Hunt agreeing to abide by the Commission’s conduct guidelines.
The case highlights the significant obligations around impartiality and public conduct for those in adjudicatory roles, and the real risk that social media activity can undermine institutional confidence – particularly where posts express views on matters that may come before the decision-maker.
Government Waives Gag Orders for Defence Sexual Violence Survivors Ahead of Inquiry
The Australian Government has waived non-disclosure agreement obligations for survivors of sexual violence in the Australian Defence Force ahead of an upcoming parliamentary inquiry. The move follows the October 2025 class action filed by women in the ADF covering a 21-year period of alleged abuse and is significant in the context of ongoing NDA reform nationally, following Victoria’s new laws restricting the use of NDAs in sexual harassment settlements.
Ambulance Tasmania – Toxic Culture Revealed
A review of Ambulance Tasmania has revealed ongoing toxic workplace culture alongside worsening operational pressures. The findings highlight the intersection of psychosocial hazard management and workforce wellbeing in emergency services, a sector facing increasing regulatory and public scrutiny following similar findings in NSW Police Force and healthcare settings nationally.
PAW Psychosocial Risk Assessment Tool Being Retired from 1 June 2026
Safe Work Australia’s People at Work (PAW) psychosocial risk assessment tool began winding down from 1 June 2026, with final access available until 2 October 2026. The tool is being retired because it does not fully address all 17 hazards in the current Model Code of Practice. Employers relying on PAW as their primary risk assessment method need to transition to an alternative tool. Removing the tool does not remove the legal obligation to assess psychosocial risks.